Reichert v. Infusion Partners, LLC

• Court: District Court, E.D. Louisiana
• Decided: July 21, 2023
• Docket: 2:22-cv-05450
• Status: Unknown

Opinion

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF LOUISIANA

CHRISTIN REICHERT CIVIL ACTION

VERSUS NUMBER: 22-5450

INFUSION PARTNERS, L.L.C., ET AL. SECTION: “H”(5)

ORDER AND REASONS Before the Court is the Rule 12(b)(6) Motion for Dismissal (rec. doc. 6) filed by Defendants, Infusion Partners, L.L.C. (“Infusion”) and Option Care Health, Inc. (“Option Care”) (collectively, “Defendants”). Plaintiff has filed an opposition to the motion in which she simultaneously asks for leave to amend her Complaint. (Rec. doc. 7). Defendants filed a reply (rec. doc. 11), and a Notice of Supplemental Authority. (Rec. doc. 13). Having reviewed 1 Ith. e pleaFdaicntgusa al nBda tchkeg rcaosuen lda w, the Court rules as follows. The Complaint alleges as follows. On November 14, 2013, Plaintiff, Christin Reichert 2 began working at Infusion and/or Option Care as a Clinical Nurse II. (Rec. doc. 1 at 2). On August 17, 2021, while Plaintiff was working at Defendants’ Covington, Louisiana office, John Rademacher, CEO of Option Care, released an e-mail stating that, “‘due to the Delta variant being much more contagious and thus more dangerous, Option Care Health (OCH) is mandating the COVID-19 vaccine foIrd .customer-facing team member [sic] to be fully vaccinated by October 15, 2021.’” ( ). The email also stated that exemptions to this mandate would be granted to employees with strongly-held religious beliefs or medical

1 The parties consented to proceed before the undersigned under 28 U.S.C. § 636(c) on April 18, 2023. (Rec. 2 doc. 12). Id. conditions. ( at 2-3). As such, Plaintiff timely submittedI ad .religious exemption to Chassidy Thomas, her HR representative, on October 7, 2021. ( at 3). The next day, Plaintiff received confirmation that DefendaIdn.ts had received her exemption and would let her know

when a decision would be made. ( ). Defendants ultimately approved Plaintiff’s religious exemption on October 12, 2021, thereby requiring Plaintiff to submit to wIde.ekly COVID-19 testing via nasal swab as a substitute for the vaccine per company policy. ( ). Plaintiff started an email correspondence with Defendants in which she expressed her hesitancy to submit to the wIde.ekly COVID nasal-swab testing and offered to submit a COVID antibodies test instead. ( at 4). On October 18, 2021, Plaintiff received an email from Ciarra Johnson, a COVID-19 testing correspondent, informing Plaintiff that she hadI ndo. t connected to NAVICA, the online testing program, to begin COVID-19 testing that week. ( ).

Plaintiff responded to Johnson that she had been terminated the prior week and would not be particiIpda.ting in the weekly nasal-swab testing, yet she also asked if they offered saliva testing. ( ). She then received an email frIodm. Chassidy Thomas in which she stated that Plaintiff had not in fact been terminated. ( ). Plaintiff acknowledged this messIadg.e, and again asked Defendants if they offered saliva testing instead of the nasal Isdw. ab. ( at 5). Defendants responded that the nasal swab was the only testing option. ( ). Plaintiff did not submit to the weekly testing polIidc.y and, on October 22, 2021, she was terminated from her employment with Defendants. ( ).

On December 23, 2022, Plaintiff filed this lawsuit against Option Care and Infusion. (Rec. doc. 1)e. t P lsaeiqn.tiff sues Defendants under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e Plaintiff sues Defendants for religious discrimination (failure to accommodate), religious discrimination (disparate treatment), and retaliation. II. Standard for a Motion to Dismiss

Rule 12(b)(6) of the Federal Rules of Civil Procedure allows a party to move for

dismissal of a complaint for failure to state a claim upon which SreeelieLfo cwarne yb ev . gTreaxn. tAe d&. M S uUcnhi va. mSyos.t,ion is viewed with disfavor and is therefore rarelKya girsearn tAeldu. m inu m & Chem. Sales, Inc. v. Avon d1a1l7e SFh.3ipdy a2r4d2s,, I2n4c7 (5th Cir. 1997) (quoting ., 677 F.2d 1045, 1050 (5th Cir. 1982)). In considering a Rule 12(b)(6) motion, the Court “accept[s] alSle we eTlhl-opmlepasdoend v f.a Ccittsy aosf tWruaec oa,n Tde xv.iew[s] all facts in the light most favorable tDoo teh eex p rleali.n Mtiaffg.”e e v. Covington Cnty. Sch. Dist. ex rel,. 7K6e4y sF.3d 500, 502 (5th Cir. 2014) (citing , 675 F.3d 849, 854 (5th Cir. 2012) (en banc)). But in deciding whether

dismisIdsa. l is warranted, thAe sChocurortf tw vi. lIlq nboatl accept conclusory allegations in the complaint as true. at 502-03 (citing , 556 U.S. 662, 678 (2009)). To survive dismissal, “‘a complaint must contain s”u fGfiocnieznalte fza cvt. uKaaly matter, accepted as true, to state a claim to reIlqibefa tlhat is plausible on its face.’ , 577 F.3d 600, 603 (5th Cir. 2009) (quoting , 556 U.S. at 678) (internal quotation marks omitted). “Factual allegations must be enough to raise a right to relief above the speculative level, on Bthelel aAstsl.u Cmorppt.i ov.n T twhoamt abllly the allegations in the complaint are true (even if doubtful in fact).” , 550 U.S. 544, 555 (2007) (citations and footnote omitted). “A claim has

facial plausibility when the plaintiff pleads factual content that allows the couIrqt btaol draw the reasonable inference that the defendant is liable for the misconduct alleged.” , 556 U.S. at 678 (“The plausibility standard is not akin to a ‘probability requirement,’ but it asks for more than a sheer possibility that a defendant has acted unlawfully.”). This is a “context- specific taIds.k that requires the reviewing court to draw on its judicial experience and common sense.” at 679. “Where a complaint pleads facts that are merely consistent with a defendant's liability, iItd .stops short of the line between possibilityT wanodm bpllyausibility of

entitlement to relief.” at 678 (internal quotations omitted) (citing , 550 U.S. at 557). “[A] plaintiff's obligation to provide the ‘grounds’ of his ‘entitle[ment] to relief,’” thus, “requires more than labels aTnwd ocmonbclylusions, and a formulaic recitation of the elements of a cause of action will not do.” , 550 U.S. at 555. Finally, “[w]hen reviewing a motion to dismiss, a district court ‘must consider the complaint in its entirety, as well as other sources ordinarily examined when ruling on Rule 12(b)(6) motions to dismiss, in particular, documents incorporatFeudn ikn tvo. Stthrey kceorm Cpolrapi.nt by reference, and matters of which a courTt emllaaby st,a Iknec. jvu. dMicaikaol rn Iostsiucees.” & Rights, Ltd. , 631

F.3d 777, 783 (5th Cir. 2011) (quoting , 551 U.S. 308, 322 (2007)). If the Court considers materials outside of the pleadings, thSee em Coatiuosne yt ov d. iSsemwieslsl mCaudsitll abce- Ctrheeavtreodle tas a motion for summary judgment under RPuhleo e5n6i.x on behalf of S.W. v. Lafourche Par. Gov, 'tInc., 394 F.3d 285, 288 (5th Cir. 2004); see also , No. CV 19-13004, 2021 WL 184909, at *3-4 (E.D. La. Jan. 19, 2021); III. FedL.a Rw. Cainvd. P A. n12a(lyds).i s A. Religious Discrimination Based on Failure to Accommodate

Under Title VII of the Civil Rights Act, it is unlawful for an employer “to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e-2(a)(1). “The term ‘religion’ includes all aspects of religious observance and practice, as well as belief, unless an employer demonstrates that he is unable to reasonably accommodate an employee's or prospective employee's religious obIds.e rvance or practice without undue hardship on the conduct of the

employer's business.M” cDoantn §e l2l 0D0o0ueg(jla).s Courts use a burden-sDhaifvtiisn gv . fFraomrt eBweonrdk C ttoy .analyze a claim for failure to accommodate a religious observance. p rima facie , 765 F.3d 480, 485 (5th Cir. 2014). The employee must establish a case of religious discrimination by alleging that “(1) she held a bona fide religious belief, (2) her belief conflicted with a requirement of her employment, (3) her employer was informed of her belief, and (4) she suffered an adverse empl Iody.ment action for fapilriinmga tfaoc iceomply with the conflicting employment requirement.” If she establishes a case, the burden shifts to the

employer “[t]o demonstrate either that it reasonably accommodated the employee, or thatI dit. was unAabnlteo itnoe r ve.a Fsiornsta Sbtluy daecncto, mInmc.odate the employee's needs without undue hardship.” 3 (citing , 713 F.3d 824, 831 (5th Cir. 2013)). “Bona fide religious beliefs include ‘moral or ethical beliefs as to what iIsd .right and wrong which are sincerely held with the strength of traditional religious views.’” (quoting 29 C.F.R. § 1605.1). This Court is taskedU wniitthe dd eSctaidteins gv .w Sheeegtherer the individual’s beliefs “are, in her own scheme of things, religious.” , 380 U.S. 163, 185 (1965). In

McDonnell Douglas 3 Swierkiewicz v. Sorema N.A. The Court recognizes that the familiar prim sata fnadciaer d for evaluating employment discrimination claims is an evidentiary framework, not a pleading standard.R aj v. La. State Univ. , 534 U.S. 506, 512 (2002). AccorSdwiniegrlkyi,e “wai cpzlaintiff need not makes oeeu ta als o, e.g. Chhimc avs. eU noifv d. oisfc Triemx.i anta tAiuosnt iinn order to survive a Rule 12(b)(6) motion to dismiss for failure to state a claim.” , 714 F .3pdr i3m2a2 , f3a3ci1e (5th Cir. 2013) (citing , 5h3e4 hUa.Sd. atto 5 p1l0e-a1d2 s);u fficient fact, s on all of the ultimate eleme,n 8t3s6 o Ff .a3 dd i4s6p7a,r 4a7t0e t(r5etha tmCier.n t2 c0l1a6im) (t“oA mlthaokueg hhi sC chahsiem p ldaiuds inbolet .have to submit evidseenec ael stoo M eilstteaebrl ivs.h N aavarro Cnty., Texcaasse of discrimination at this stage, ”) (emphasis added); , No. this regard, a belief is “religious” if it is “a sincere and meaningful Ibde.lief which occupies in the life of its possessor a place parallel to that filled by . . . God.” at 176. “The specific religious pracTtiacgeo mreu vst. Ubnei teexda mStianteeds rather than the general scope of applicable religious

tenets . . . .” , 735 F.3d 324, 328 (5th CSiere. g2e0r13). However, “[t]he validity of what [the plaintiff] believes cannot be questioned.” , 380 U.S. at 184. The Fifth Circuit cautions that “judicial inquiry into the sinceriDtya voifs a person's religious belief ‘Tmaugsotr ebe handled with a light touch, or judicial shyness.”’ , 765 F.3d at 486 (quoting , 735 F.3d at 328). Nonetheless, the United States Supreme Court has explained that although the determination of whether a belief is “religious” is a delicate question, “the very concept of ordered liberty precludes allowing every person to make his Wowisnco sntsainnd va. rYdosd oern matters of conduct in which society as a whole has important interests.” ,

406 U.S. 205, 215-16 (1972). Beliefs based on “purely secuIlda.r considerations” or that are “merely a matter of personaIdl .preference” are not protected. Instead, the “claims must be rooted in religious belief.” Here, the Court finds that Plaintiff’s claim fails as her allepgraitmioan fsa cairee not sCuhffhicimient to make her case plausible as to the first and second factors of the test. , 836 F.3d at 470. The Court finds that Plaintiff has failed to allege that she has a bona fide religious belief, let alone that this religious belief conflicted with Defendants’ vaccine policy. This Court cannot begin the inquiry into religious discrimination because Plaintiff has not alleged

any facts regarding the essential element of her claim: her sincerely held religious beliefs. Plaintiff summarily states that the COVID-19 vaccine violated her religious beliefs, but her Complaint is lacking any allegations as to what those beliefs are. (Rec. doc. 1). She does not explain what her religious beliefs are, nor why her religious beliefs conflict with Defendants’ Id. policy. ( ). She states only that she has a religious belipefr,i mwah ifcahc iwe as acknowledged by her employers, but Title VII requires more to create a valid claim of discrimination. Without a sincerely held religious belief, there is no basis to conclude that Plaintiff is a

member of a protected class. Plaintiff’s Complaint is replete with medical arguments as to why Defendants’ policy was inadvisable and accusations that Defendants were motivated by advertising and “virtue signaling.” These allegations suggest that Plaintiff’s beliefs regarding the COVID-19 vaccine were based on purely secular considerations or were merely a matter of personal preference. Such beliefs cannot form the basis of a religious discrimination 4 claim. Ulrich v. Lancaster General Health In , the plaintiff brought a religious discrimination claim for failure to accommodate and a claim for disparate treatm e nt because she was fired for not getting vaccinated or submitting to the wUeelrkilcyh C OVID tests. Civ. A. No. 22-4945, 2023 WL 2939585, at **1-2 (E.D. Pa. 2023). The plaintiff claimed to be “a practicing Christian and member of a Christian church with a sincere religious faith grounded in scripture and God's directives involving fundamental beliefs about how one should rely upon His providence and care and not submit to impositions such as the testing requirement. . . .”

4 Courts in other circuits have held as much under similar circumstancBerso. wFonr v e. Cxahmildprleen, 'tsh He oTshpi.r odf CPihriclaudite Clpohuirat of Appeals affirmed dismissal of a plaintiff’s amended complaint, finding that plaintiff had not alleged any facts to support finding that her opposition to the flu vaccine was religious. , 794 F. App'x 226, 227-28 (3d Cir. 2020). The court of appeals observed, “[a]t one poIdin. t, [plaintifFf]a lclloanim v.e Md ethrcayt tChaet hv.a Mcceidn.e C wtra. osf u Snen. Peecnenss.ary for her because she scrupulously washed her hands, but any ‘concern that the flu vaccine may do more harm than good . . . is a medical belief, not a religious one.’” (quoting , 877 F.3d 487, 492 (3d Cir. 2017)). Similarly, the District Court for the MiddFlien Dkbisetirniecrt ov.f GPeeinsinnsgyelrv Calniniai cheld that the plaintiff’s “statement – which centers on her free will and belief that Covid-19 vaccines and tests are harmful and unnecessary – fails to establish sincere religious opposition . . . .” , No. 4:21-CV-01903, 2022 WL 3702004, at *4 (M.D. Pa. Aug. 26, 2022). The court rejected her Irde.l iance on “her belief that she has a ‘God given right to make [her] own choices’” because this was only an “isolated mIdo.ral teaching” and not a “comprehensive system of beliefs about fundamental or ultimate matters.” Id. at *2. She presented the court with philosophical, religious, anIdd .scriptural reasons for why she did not want to take the vaccine or be tested for COVID. Despite her detailed reasons, the court ultimately disImd.issed her complaint because the reasoning was not based

on an actual “religious” belief. at *4. Finding this authority persuasive, it is Ucllreiacrh that Plaintiff, having alleged and submitted much less to the Court than the plaintiff in , has not stated a valid religious belief for purposes of Title VII. Her claims should be dismissed. Indeed, Plaintiff’s complaint reveals not a religious belief but more of a philosophical and personal belief about the efficacy of the COVID-19 vaccines and testing. Reviewing her Complaint is more akin to reading a medical treatise than a replirgiimoua sf tarcaicet. Assuming arguendo that Plaintiff had established a case for religious discrimination, it is clear that Defendants reasonably accommodated her request. Plaintiff

alleges in her Complaint that the only reasonable accommodation would have been a saliva test – as opposed to a vaccination or a nasal swab. (Rec. doc. 1). She ultimately refused both the vaccination and the nasal swab, what this Court finds to be an objectively reasonable accommodation. “An employer has the statutory obligation to make reasonable accommodations for tDhaev irse vli. gFiooruts B oebnsde Crvtya.nces of its employees but is not required to incur undue hardship.” , 765 F.3d 480, 485 (5th Cir. 2014). A proposed accommodation is not rCeaadseonnaa vb.l Ee l iPf aisto “ Cfutyn.damentally alter[s] the nature of the service, program, or activity.”

, 946 F.3d 717, 7C2r4e d(5euthr Cv.i rL.o 2u0i2si0a)n. a And “a job is fundamentally altered if an essential function is removed.” , 860 F.3d 785, 792 (5th Cir. 2017) (cleaned up). As noted above, the Fifth Circuit analyzes a Title VII claim Dfaovri sa failure to accommodate religious observance under a burden shifting pfrraimmae wfaocrkie. , 765 F.3d at 485. As statedA natbooinvee v, . PFliarsint tSitffu dmenutstI nfci.rst establish a case of religious

discrimination. , , 713 F.3d 824, 831 (5th Cir. 2013). If she does, “the burden shifts to the defendant to demonstrate either that it reasonably accommodated the employee, or that it wIda.s unable to reasonably accommodate the employee’s needs without undue hardship.” prima facie Here, assuming that Plaintiff had alleged a case of religious discrimination – which she has not – Plaintiff freely admits in her Complaint that Defendants accommodated her request for a religious exemption to the COVID-19 vaccine. (Rec. doc. 1). She simply did not believe the accommodation to be reasonable. Plaintiff then speculates that instead of the

weekly tests, there were sevIedr.al other available measures that Plaintiff could haveId t.aken to ensure workplace safety. ( ). She then proceeds to list numerous examples. These alternatives ignore that Defendants provided Plaintiff with a reasonable accommodation that she refused to follow. Indeed, this Court is aware of no law – and Plaintiff has cited the Court to none – that supports the proposition that would allow the employee in every individualized situation to dictate the nature of the reasonable accommodation that her employer must provide her. Also, Plaintiff fails to allege that sIdh.e ever actually informed Defendants of alternative protections in lieu of weekly testing. ( ).

Plaintiff fails to plead that Defendants did not provide her with a reasonable accommodation to the vaccination. She does not allege that the proposed accommodation fundamentally altered the nature of her service, program, or activity, nor does she allege that the proposed accommodation removed an essential function of her job. In fact, she pleads that Defendants provided her with a reasonable accommodation, the weekly nasal swabs, and sheB s. imRpellyig rieofuuss eDdi stoc raibmidine abtyio Dne Bfeansdeadn tosn’ aDcicsopmamraotdea Ttiroena. t mTheins tc laim lacks merit.

Plaintiff’s disparate treatment claim fails for the same reason as her reasonable accommodation claim. The two essential elements of a disparate treatment claim under Title VII include: 1) “anS aedev Rearjs ev eLma.p Slotaytme eUnnti va.ction,” 2) taken against the plaintiff because oKfa hneidra p vr.o Gteuclft eCdo acslat sMs.e d. Pers. LP. , 714 F.3d 322, 331 (5th Cir. 2013) (quoting , 363 F.3d 568, 576 (5th Cir. 2004)). A plaintiff must allege facts, direct or circumstantial, that suggest the employer’s actions were based on her protected status or thIadt the employer treated similarly-situated employees outside of her class more favorably. . When a plaMinctDifofn’sn cealls eD roeuvgolalvsess around circuLmaxsttaonnt via. lG eavpid Ienncce, a

court analyzes the claim under the framework. ., 33 F.3d 572, 578 (5th Cir. 203). Under this frapmriemwao frakc,i et he plaintiff must first Idcr.eate a presumption of discrimination by making out a case of discrimination. Plaintiff does not allege that DefendantDsa vtriseated “similarly situated employees outside of her protected class” more favorably. , 765 F. 3d at 488. Plaintiff does not identify the religious affiliation of any comparator employees, nor does she allege whether these employees shared the same job title and responsibilities as she. (Rec. Doc. 1). Conclusory allegations regarding an employer’s treatment of other unidentified employees

are insufficient to plead a circumsSteaen Ctihahl ilmink between an adverse employment action and membership in a protected class. , 836 F. 3d at 471. prima facie Here, the Court determines that Plaintiff fails to establish a case of disparate treatment in her Complaint and her response to Defendant’s motion for dismissal. (Rec. Doc. 1, 7). Plaintiff does not allege what her religious beliefs are, and she has failed to allege facts to support a disparate treatment claim under Title VII because she has not provided facts in her Complaint to suggest that she is a member of a protected class. She has

not alleged that she has any religious affiliation apart from the conclusory statement that she is a member of a protected class because she requested a religious accommodation to avoid being Ivqabcaclinated. The Court is not required to accept such legal conclusions as plausible facts. , 556 U.S. at 678. Plaintiff does not allege a membership to any church or religion, nor has she alleged that any similarly-situated employees were treated more favorably than her. ThCis. cRlaeimta lailastoi ofani ls.

Under Title VII, retaliation occurs when a plaintiff engages in protected activity, such

as reporting discrimination or perceived discriminationA ctkhealt v v. iNoalatt’le Cs othmem scta’ntsute, and suffers a causally-related adverse emplporyimmean fta ccioensequence. , 339 F.3d 376, 385 (5th Cir. 2003). To state a case of retaliation under Title VII, a plaintiff must show that: 1) she engaged in an activity protected by Title VII; 2) she was subjected to an adverse employment action; and W3)i lali sc avu. Csalel cloin Cko erpxi.sts between the protected activity and the adverse employment action. , 749 F.3d 314, 317 (5th Cir. 2014). Here, Plaintiff fails to allege that she engaged in a protected activity under Title VII. Plaintiff has only asserted the single conclusory statement that Plaintiff “engaged in

protected activity under Title VII when she sought a religious accommodation from a policy that would otherwise require her to violate her sincere religious beliefs.” (Rec. doc. 1). Merely requesting a religious accommodation does not qualify as protected activity under Title VII because it does not constitute making a charge, testifying, assisting, or participating in an investigation, proceeding, or hearing, nor does it amount to opposing an unlawful employment practice. 42 U.S.C. § 2000 e-3(a). Plaintiff contends that requesting a religious accommodation is a “protected activity”

under Title VII, but she cites no controlling authority to support this claim. Regardless, “merely requesting a religious accommodationE iEsO nCo vt. Nth. eM seamm’le H aesa lothp pCoasrieng the allegedly unlawful denial of a religious accommodation.” , 908 F.3d 1098, 1102 (8th Cir. 2018). Plaintiff has simply failed to plead sufficient facts to state a legally 5 cIVog. nizaLbelea vcela timo A fomr ernetda liation under Title VII. At the end of her opposition, Plaintiff states, “However, even if this Honorable Court should grant the Motion [to Dismiss], Plaintiff should be granted leave to file an amended

Complaint to more fully flesh out [her] allegations.” (Rec. doc. 7 at 5). While the Court recognizes that leave to amend should be freely granted when justicSec hsoil lreerq vu.i rPehsy, sFiceida.n Rs. RCeivs.. PG.r o1u5p(a, I)n, cd.istrict courts have discretion to manage their dockets. , 342 F.3d 563, 566 (5th Cir. 2003)). “DecisionJosn ceosn vc. eRronbinings omno Ptiroonps. Gtor pa.m, Le.Pn.d are entrusted to the sound discretion of the district court.” , 427 F.3d 987, 994 (5th Cir. 2005) (internal quotation marks and citation oSmeei tMteadr)u. cTchi Sep Foirfttsh, CL.iLr.cCu. ivt .h Naas tr'le pCeoallteegdialyt ec aAuthtiloentiecd A tshsa'nt leave to amend is not “automatic.” , 751 F.3d 368, 378 (5th Cir. 2014). Instead, a district

court must consider a host o f factors, including “undue delay, bad faith or dilatory motive on 5 Stroy v. Gibson on behalf of Dep't of Veterans A fBfaeicrasuse this Court finds that Plaintiff fails to plead a claim for retaliation on the merits, it need not address Defendants’ exhaustion argument, which is not Djuarviissdictional. Davenport v. Edward D. Jones & Co., L.P. , 896 F.3d 693, 698 (5th Cirs. e2e0 a1l8so) (W“Aosm wblee hv.a Bvhe ahneglud, however, Title VII's administrative exhaustion requirement is not a jurisdictional requirement. , 893 F.3d at 306; Davis , the part of the movant, repeated failures to cure deficiencies by amendments prIde.viously allowed, undue prejudice to the opposing party . . ., and futility of the amendment.” at 378 (citation omitted).

The Fifth Circuit has held that a district court does not abuse its discretion when a plaintiff seeks leave to amend in an opposition pleading and fails to apprise the district court Mofa tnhdeu jfaancots vt. hCaitt yw oof uPlhda brre, Tpelexa.ded in the amended complaint to cure any deficiencies. , 786 F. App'x 434, 437 (5th Cir. 2019) (“Mandujano next argues that the district court should have granted his request for leave to amend included at the end of his response to the City's motion to dismiss. . . . The district court did not abuse its discretion in denying the motion. As the district court explained, leave may be denied where, as here, the movant insisted his complaint sufficed to state a claim and ‘fail[ed] to apprise

the district court of the facts that he would pLlaewad v .i nO cawne anm Leonadne Sde rcvoimcinpgla, iLn.tL,. Cif. necessary, to cure any deficiencies.’”) (citation omitted)); , 587 F. App'x 790, 796 (5th Cir. 2014) (“‘A party who neglects to ask the district court for leave to amend cannot expect to receive such dispensation from the court of appeals.’ Although this request need not be contained in a formal motion, ‘[a] bare request in an opposition to a motion to dismiss – without any indication of the particular grounds on which the amendment is sought – does not constitute a motion within the contemplation of Rule 15(a).’”) (citations omitted)).

Here, Plaintiff insisted her Complaint sufficed to state a claim, and her request to amend at the end of her opposition to Defendants’ motion to dismiss does not articulate how any allegations could cure the deficiencies of her Complaint. For this reason, the Court exercises its discretion and will not permit leave to amend. V. Conclusion

FITo rI tSh Oe RfoDreEgRoEinDg reasons, GRANTED that the Motion to Dismiss (rec. doc. 6) is . Plaintiff’s claims against Defendants under Tit2le0 VthII are dismissedJ wulityh prejudice.

New Orleans, Louisiana, this _____ day of ___________________________, 2023.

MICH AEL B . NORT H UNITED STATES MAGISTRATE JUDGE